Inspector Gary Mason v John Holland Group Pty Limited

CATCHWORDS: Occupational Health and Safety - notice of motion - orders seeking vacation of hearing dates and stay of hearing pending Court of Appeal proceedings - orders opposed - jurisdiction - balance of convenience considered - orders refused

Industrial Relations Act 1996 LEGISLATION CITED: Occupational Health and Safety Act 2000

Collins v Edelman Public Relations Worldwide Pty Limited [2005] NSWIRComm 205 Hardinage v Gert Schidor Design Pty Ltd & Anor (No 2) [2005] NSWIRComm 174 Inspector Wolf v Rockdale Beef Pty Ltd [2005] NSWIRComm 346 CASES CITED: Morrison v Powercoal Pty Ltd & Anor (No 2) [2005] NSWIRComm 6 Newcrest Mining v Industrial Relations Commission of New South Wales [2005] NSWCA 85 Solution 6 Holdings Ltd and Ors v Industrial Relations Commission of New South Wales and Ors (2004) 60 NSWLR 558

PROSECUTOR/DEFENDANT ON MOTION: Mr PM Skinner of counsel SOLICITORS: Moray & Agnew LEGAL REPRESENTATIVES:

DEFENDANT/APPLICANT ON MOTION: Mr GJ Hatcher SC with Ms PE McDonald of counsel SOLICITORS: Thompson Playford

• 1 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION

INSPECTOR GARY MASON v JOHN HOLLAND GROUP PTY LIMITED

Prosecution under section 8(2) of the Occupational Health and Safety Act 2000 JUDGMENT

1 This matter is listed for hearing, together with a number of other prosecutions, in December 2005. The defendant has sought orders vacating the hearing dates and staying the hearing of these proceedings, pending determination of proceedings which the defendant has commenced in the Court of Appeal. The prosecutor opposed the orders sought. 2 The summons initiating the Court of Appeal proceedings raises this Court's jurisdiction to hear the proceedings, the question of whether the proceedings were commenced within time, as well as whether the proceedings involve an abuse of process. The defendant conceded that these were all matters which this Court could, and in the ordinary course would, determine for itself. 3 Nevertheless, the stay sought was pressed, as it was put in the grounds supporting the defendant's motion, because:

7. In the event the IRC proceedings proceed to be determined before the determination of the Court of Appeal proceedings, the prosecutor may contend that any decision in the IRC proceedings is protected from appeal by virtue of Section 179 of the Industrial Relations Act 1996 (NSW).

8. In the event the Applicant is successful in the Court of Appeal proceedings, there will be no need to determine the IRC proceedings. Further, there will be unnecessary duplication of costs and effort by both parties if the IRC proceedings are determined prior to the determination of the Court of Appeal proceedings. 4 In the affidavit supporting the motion, sworn by the defendant's solicitor, Mr John Murray, it was estimated that the cost of defending the prosecution would amount to $150,000. The inconvenience which the hearing would cause witnesses, was also referred to. 5 In submissions put for the defendant by Mr Hatcher SC, appearing with Ms McDonald of counsel, it was argued that in considering the stay application, the approach of the Chief Justice in Solution 6 Holdings Ltd and Ors v Industrial Relations Commission of New South Wales and Ors (2004) 60 NSWLR 558 would be taken into account. There his Honour observed that given the enactment of s 179 of the Industrial Relations Act 1996, the well established principle that the Court of Appeal would exercise its supervisory jurisdiction with restraint could no longer operate as it had. His Honour concluded at [145]:

Although this Court must still be slow to intervene before a superior court like the Commission has had an opportunity to determine its own jurisdiction, the principle of restraint can no longer operate as it did before s 179 was enacted, at least with respect to matters that are not of an industrial character.

6 It was acknowledged that there was current Court of Criminal Appeal authority which this Court had applied in determining whether a prosecution had been commenced in time. It was submitted that this made it important for the stay to be granted, so that the Court of Appeal could be asked to consider the correctness of that authority. It was also argued that the way in which proceedings such as these were commenced, ex parte and, it was argued, without any supporting evidence, was also an important aspect of the criminal justice system, which the Court of Appeal ought to have the opportunity to consider. 7 If this Court heard and determined these matters, s 179 would preclude the Court of Appeal being approached. The defendant would be left only with an appeal to the Full Court and would be deprived of an avenue of appeal, available in other criminal matters. On the defendant's approach, these considerations would lead to the granting of a stay. 8 In opposing the stay Mr Skinner of counsel argued for the prosecutor that the Court as presently constituted hearing this prosecution would not deprive the defendant of any rights. The system of appeals for prosecutions under the Occupational Health and Safety Act 2000 was statutory. There was an appeal to the Full Court. Those proceedings were governed by a statute which included s 179. The approach of the Full Court to that system, as expressed in Morrison v Powercoal Pty Ltd & Anor (No 2) [2005] NSWIRComm 6 at [10] and [118] would be followed. Consideration

9 As I recently observed in Collins v Edelman Public Relations Worldwide Pty Limited [2005] NSWIRComm 205, it is difficult to see that this Court could properly stay proceedings, simply because a party has made an application to the Court of Appeal. Such an approach does not appear consistent with the Parliamentary intent evident in s 179 of the Act. Nor was it contemplated by the Chief Justice in Solution 6. 10 The power to order a stay is discretionary. In this case, the exercise of the power is sought at the outset of the hearing of criminal proceedings, in which fairly commonplace questions arise as to matters such as the time of initiation of the proceedings, whether the pursuit of the proceedings involves an abuse of process and whether the Court has jurisdiction to entertain the proceedings. The test which I accepted in Collins as applying was one of necessity, following the approach of Bryson J in Newcrest Mining v Industrial Relations Commission of New South Wales [2005] NSWCA 85 and Boland J in Hardinage v Gert Schidor Design Pty Ltd & Anor (No 2) [2005] NSWIRComm 174. 11 In this case, the incident at the heart of all the charges laid has given rise to a number of prosecutions of related companies. All those matters are listed for hearing in December. Whatever the outcome of this application, the hearing of the other prosecutions will not be affected. This defendant has approached the Court of Appeal, relying in part on the cost of the hearing, if the Court does not in truth have the jurisdiction to hear the charges brought to support the grant of the stay it has sought. 12 The obvious counterpart to that argument is the cost and inconvenience flowing to the parties and witnesses, if this prosecution has to proceed separately. Even on the case advanced for the defendant, the close interconnection between the various defendants and what here occurred, was apparent. The convenience of hearing all the prosecutions together is patent. 13 Having weighed the competing considerations which here arise, I am unable to conclude that the Court's discretion to grant a stay should be exercised. The determination of the issues which the defendant has elected to take to the Court of Appeal, by this Court at first instance, will not deprive the defendant of the rights of appeal which have been granted to defendants in prosecutions such as this. If it is unsuccessful in relation to the matters which it wishes to argue, it may appeal to the Full Court, in the ordinary way. 14 That a decision given by this Court may become the subject of the provision made in s 179 of the Act, is also a part of the statutory scheme which the Parliament has created to regulate proceedings such as this. I am not satisfied that this, of itself, is a proper basis for granting a stay. Nor is it clear that the Court of Appeal might not be approached by the defendant, if it were thought necessary, before the matter went to the Full Court on appeal from a decision of a single member of this Court. So much seems clear from the views of the Court of Appeal in Solution 6 and the cases which have followed that decision. 15 Nothing which the defendant has advanced, convinces me that this Court should not hear these proceedings in the ordinary way. The question of resulting cost and inconvenience, is not as plain as the defendant argued. Indeed, to grant the stay may, in the long run, increase costs and inconvenience, rather than reduce them. I am not satisfied that the balance of convenience lies with the defendant. 16 On 28 September, the President, Justice Wright, gave a decision in relation to a similar application in Inspector Wolf v Rockdale Beef Pty Ltd [2005] NSWIRComm 346. In different circumstances, but for not dissimilar reasons, his Honour also refused the stay there sought. Both parties drew attention to the decision, but advanced no further submissions in relation to it. It is unnecessary to consider the decision further, apart from noting that the fact of a decision by a single member of this Court has not seemingly inhibited an approach to the Court of Appeal in that case. Orders

17 For all of the reasons given, I have concluded that the orders sought in the motion must be refused. Costs should follow the event, in the ordinary way. If the parties are unable to agree on the question of costs, they have liberty to approach further.

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